A federal district judge ruled Monday that former White House counsel Don McGahn must comply with a congressional subpoena despite an assertion by the White House of “absolute immunity” for the former aide. Judge Kentanji Brown Jackson ordered that McGahn was “not immune” from being compelled to testify by Congress but added that he may not have to provide every piece of information Congress seeks.
“Whether or not the law requires the recalcitrant official to release the testimonial information that the congressional committee requests is a separate question, and one that will depend in large part on whether the requested information is itself subject to withholding consistent with the law on the basis of a recognized privilege,” Jackson wrote. “But as far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.”
“Per the Constitution, no one is above the law,” Jackson continued. “That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires.”
The Trump administration will surely seek an immediate stay of the decision, which could have broader implications for other current and former executive branch officials from whom Congress seeks testimony. Even with an appeal imminent, the ruling was an unambiguous rejection of the Trump administration’s sweeping and suspect immunity claim that has served as a giant roadblock to congressional oversight of the executive.
